Privileging Secrecy: The CSE Act’s New Class Privilege - Part I

21 May 2019

By Leah West

Bill C-59: An Act respecting National Security Matters is currently awaiting third reading in the Senate. While the bill has been the subject of much discussion on the INTREPID podcast and blog since its inception, there are still bits and pieces that have yet to be fully explored. Given that this 120-page bill expands the mandates of several Canadian national security agencies, creates a new pan-agency review body and introduces a new quasi-judicial office, the more mundane elements of the bill have been somewhat overlooked, if not wholly ignored. This two-part blog post hopes to shed light on one such provision found in the proposed Communications Security Establishment Act (CSE Act).

Section 55 of the CSE Act  sets out a brand-new statutory privilege for those who provide assistance to CSE:

It is prohibited, in a proceeding before a court, person or body with jurisdiction to compel the production of information, to disclose the identity of a person or entity that has assisted or is assisting the Establishment on a confidential basis, or any information from which the identity of such a person or entity could be inferred.

This provision creates a new from of “class privilege.” Class privilege provide a blanket protection to a defined relationship. Solicitor-client privilege, is perhaps the best-known example. This is in contrast to case-by-case findings of privilege where the facts of a particular circumstance have to be evaluated before determining that a specific relationship or communications etc. should remain confidential in legal proceedings.[1] The central issue when assessing whether a class privilege applies to protect information is the type of relationship: “Once the relevant relationship is established between the confiding party and the party in whom the confidence is placed, privilege presumptively cloaks in confidentiality matters properly within its scope without regard to the particulars of the situation.”

Privileges are a compromise. Let’s use a criminal trial as an example. When a person is charged with a crime in Canada they have a right under section 7 of the Charter of Rights and Freedoms to all the material relevant to their case in the Crown’s possession. This obligation protects the accused’s rights to a full answer and defence and to a fair trial.[2]

An assertion of privilege blocks the disclosure of that material to the accused. The Supreme Court explains that this trade off may be constitutional because it is necessary to preserve confidential relationships that serve an important public interest. In the case of police informer privilege, the Supreme Court explained that it is an

ancient and hallowed protection which plays a vital role in law enforcement. It is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same.[3]

Similarly, CSIS human sources risk their personal safety to provide information to CSIS that is essential to the investigation of national security threats to Canada. In 2015, the CSIS Act was amended to create a new statutory class privilege for CSIS human sources, after the Supreme Court found that CSIS human sources did not benefit from the common law police informer privilege (previously discussed here). Section 18.1 of the CSIS Act states that the new privilege is meant “to ensure that the identity of human sources is kept confidential in order to protect their life and security and to encourage individuals to provide information to the Service.”

The new class privilege created in section 55 of the CSE Act is clearly building upon and learning from the implementation of 18.1 of the CSIS Act (to be discussed in Part II) but it is different in a few important ways.

First, under the CSIS Act, for someone to qualify as a human source and benefit from the protection of 18.1, the law requires that there be a promise of confidentiality between the Service and the individual in exchange for information. Not so in the CSE Act where the precondition is a provision of assistance on a confidential basis.  This means that if an individual’s status as a source is challenged, CSE will not have to provide evidence that an actual promise was made to keep the individual’s identity a secret, the extent of that promise, and that on the basis of that promise the source provided assistance to the Establishment.

Second, both police informer privilege and CSIS human source privilege belongs to a specific person. The CSE Act privilege, however, may be held by an “entity”, defined in s. 2 of the CSE Act as: “a person, group, trust, partnership or fund or an unincorporated association or organization and includes a state or a political subdivision or agency of a state.”

When compared against other class privileges in Canadian law, this is incredible.

Although I fully acknowledge the importance of protecting interagency and state relationships, I have a hard time accepting this as a justification for the complete and total prohibition against the disclosure of information that might reveal the  provision of assistance to CSE by a foreign government. Courts have accepted that a person’s right to full disclosure may be limited because it is necessary to protect the safety of other citizens who assist the police, but the equities are not the same when we are talking about protecting the fact that a foreign partner provided some form of assistance to CSE.

Typically, this type of information has been protected via a s. 38 Canada Evidence Act application. To succeed in a s. 38 application, the government must establish that revealing their partnerships with a foreign state or agency would cause injury to Canada’s national security, defence or international relations, and that the public interest in protecting the information outweighs the interests in disclosing it. In immigration proceedings, these matters are most commonly dealt with via a s. 87 of the Immigration and Refugee Protection Act. In that case however, the government, need only establish that disclosing the information would be injurious to one of the same three interests.

Under s. 55 of the CSE Act, the government may now make an application to the Federal Court under either the Canada Evidence Act or IRPA to prevent the disclosure of information that would reveal the identity of an individual or “entity” who aided CSE. As I understand the provision, once the government proves the assistance was provided on a confidential basis and that the information at issue is identifying, the judge must order its non-disclosure. The only basis for refusing to make such an order is if the underlying proceeding is a criminal matter and the information at issue is essential to proving the innocence of the accused. This is a significant, and powerful change to the current regime, and one that puts CSE and Canada’s other intelligence agencies on very different footings when it comes to the protection of national security information.

Part 2 of this blog series is here.

[1] See R v National Post, [2010] 1 SCR 477.

[2]  See R v. Stinchcombe, [1991] 3 SCR 326, 

[3] R v Leipert, [1997] 1 SCR 281, at para 9.